Apple and the American Revolution: Remembering Why We Have the fourth Amendment

On February 16, 2016, the U.S. Department of Justice (DOJ)
obtained an unprecedented court order in the San Bernardino shooting case that
would have forced Apple to design and deliver to the DOJ software capable of
destroying the encryption and passcode protections built into the iPhone.1 The DOJ
asserted that this order was simply the extension of a warrant obtained by the
Federal Bureau of Investigation (FBI) to search the shooter’s iPhone, which had
been locked with a standard passcode.

The FBI’s litigation strategy backfired when Apple decided to
commit its resources to getting the order vacated. The Fourth Amendment’s
guarantee that “[t]he right of the people to be secure in their persons,
houses, papers and effects against unreasonable searches and seizures, shall
not be violated”2
was technically not at issue in the San Bernardino case. Nonetheless, when Apple
CEO Tim Cook said, “we fear that this demand would undermine the very freedoms
and liberty our government is meant to protect,”3Americans
began to feel—perhaps for the first time since the Revolutionary Era—that they
needed protection against search warrants.

Apple assembled a team of legal luminaries to challenge the San
Bernardino order, including former Solicitor General Ted Olson, who told the
media that a loss for Apple would “lead to a police state.”4
The day before the highly anticipated hearing, the DOJ unexpectedly requested
an adjournment;5
a week later, the DOJ asked that the order be vacated as no longer necessary,
saying that an unnamed “third party” had broken the passcode for the FBI.6
The DOJ similarly backed off in a later case in New York.7

What happened? The FBI took a beating in the media, public
opinion, and Congress. As the story of
FBI v. Apple received tremendous national media coverage,8 public opinion shifted to support Apple’s position.9 In a headline, the editorial board of the New York Times opined, “Apple Is Right
to Challenge an Order to Help the FBI”;10 the Wall
Street Journal said in an editorial that “more secure phones are a major
advance for human freedom”;11 and Pulitzer Prize-winning columnist
Clarence Page concluded that the “future of . . . personal
liberties[] is at stake.”12

The clash between Apple and the FBI/DOJ quickly made its way
to Congress’s doorstep. Within days of the San Bernardino order, congressional
committees commenced hearings in which FBI Director James Comey
came under considerable criticism.13 Two Senators
proposed legislation that would force companies to comply with court decryption
orders, but the idea drew a filibuster threat, failed to gain support (even from
the White House), and was never introduced.14 The House Homeland
Security Committee dismissed the idea of a statute that would authorize “law
enforcement access to obtain encrypted data with a court order” as “riddled
with unintended consequences,” and concluded that “the best way for Congress
and the nation to proceed at this juncture is to formally convene a commission
of experts to thoughtfully examine not just the matter of encryption and law
enforcement, but law enforcement’s duty in a world of rapidly evolving digital
technology.”15 Two weeks
after the court in San Bernardino issued its order, representatives introduced
bipartisan legislation to create a congressionally led expert commission,16 and in March
the House Judiciary Committee and the House Energy and Commerce Committee
jointly established a Bipartisan Encryption Working Group.17

Two recent lawsuits filed by Microsoft against the DOJ have
only increased the need for further legislative action.18 On April 14, 2016,
Microsoft sued the DOJ, alleging that its pervasive use of the “delayed notice”
provisions in 18 U.S.C. §2705
violated the Fourth Amendment by preventing Microsoft from notifying its
customers when it was served with search warrants for emails stored “in the
cloud” on Microsoft servers.19 In July, the U.S. Court of
Appeals for the Second Circuit ordered that Microsoft’s motion to quash such a
search warrant in a different case be granted because the statute used by the
DOJ did not authorize warrants for emails stored outside the United States.20

This recent use of high-profile
litigation to challenge the power of search warrants strikingly parallels a
series of lawsuits from the 1760s. One such case was a petition brought by
citizens of Boston asking the Superior Court to stop issuing “writs of assistance”
that authorized forcible entry into their homes to search any “Vaults,
Cellars . . . or other Places” and to open “any Trunks,
Chests, Boxes, fardells or Packs” where smuggled
goods or merchandise were “suspected . . . to be
concealed.”21 This case and the ensuing controversy over writs of
assistance were among the critical events leading to the American Revolution.22 A second series of cases, filed in England,
successfully challenged the use of warrants to arrest suspected authors and
publishers of political pamphlets and to seize all their personal papers. These
warrants were condemned as “general warrants” because they authorized
nationwide general searches and were not limited to specifically identified
persons, places, and papers.

This Essay will examine the writs of
assistance and general warrants cases of the 1760s to show how they helped
establish the following bedrock principles underlying the Fourth Amendment:

The right to keep private papers secure from government surveillance is essential to
liberty.23

Search warrants are a grave threat to the security of private papers.24

General warrants to seize and search all of a person’s private papers must be prohibited.25

After reviewing this history, this Essay will show how the DOJ’s current practices in using search warrants for electronically stored information (ESI) violate these fundamental principles. This Essay concludes by proposing new legislation to restore Fourth Amendment protections to our “private papers” now kept in digital form.

I. why
we have the fourth amendment

No less an authority than John Adams26 has told us “the child Independence
was born” in 176127 when James Otis filed a petition pro
bono on behalf of a group of Boston citizens opposing reissuance of writs of
assistance.28 According to
Adams’s eyewitness account, Otis told
the court that the writ of assistance was “the worst instrument of
arbitrary power, the most destructive of English liberty,”29 after which “[e]very man of an [immense] crowded Audience
appeared to me to go away, as I did, ready to take up Arms against Writts of Assistants [sic]. Then and there was the first
scene of the first Act of Opposition to the arbitrary Claims of Great Britain.”30

Just two years after Otis’s passionate speech, a group of
political pamphleteers in England struck back against royal oppression by
filing a number of successful damage actions challenging the use of general
warrants to seize and search their private papers.31 In the most famous of these cases,
the British Secretary of State, Lord Halifax, had issued a general warrant “to
make strict and diligent search for the...authors, printers and
publishers of a seditious and treasonable paper, [e]ntitledThe North Briton, No. 45...and...any of them having
found, to apprehend and seize [them], together with their papers.”32 The dragnet
search led to the arrest of John Wilkes, a member of
Parliament, for being the suspected author. When officers searched Wilkes’s
London home and encountered a table with locked drawers, they asked
instructions of Lord Halifax, who replied that the drawers must be opened and
all manuscripts seized.33 After summoning a locksmith,
the officers took “all the papers in those drawers and a pocket-book of Mr.
Wilkes’s,” put them in a sack, and carried them away.34

Chief Justice Charles Pratt told the Wilkes jury that the defendant’s claim
to be acting under a legal warrant “was a point of the greatest consequence he
had ever met with in his whole practice.”35 He went on, “If such a power is truly invested in a
Secretary of State . . . it . . . is
totally subversive
of . . . liberty . . . .”36

In another pamphleteer lawsuit, the
plaintiff’s lawyer told the jury:

[R]ansacking a man’s secret drawers and boxes to come at
evidence against him[] is like racking his body to
come at his secret thoughts.... [H]as a Secretary of State a right to see all a
man’s private letters of correspondence, family concerns, trade and business?
[T]his would be monstrous indeed; and if it were lawful, no man could endure to
live in this country.”37

Affirming the jury’s verdict on appeal
two years later, Chief Justice Pratt (recently given the title Lord Camden)
authored one of the most widely cited judicial decisions in Fourth Amendment
jurisprudence:38 he declared that “[p]apers
are . . . [our] dearest property; and are so far from
enduring a seizure, that they will hardly bear an inspection”39 and concluded that “I can safely answer, there is
no[]” “written law that gives any magistrate” the power to search and seize personal
papers.40

Colonists understood that resistance to writs of assistance
in Boston and opposition in England to the use of general warrants to search
private papers were all part of a unified struggle for liberty.41 The famous silver bowl designed in
1768 by Paul Revere for the Boston Sons of Liberty says it all: the image of a general
warrant torn in half is paired with the words “No. 45” and “Wilkes & Liberty”
and topped by flags labeled “Magna Carta” and “Bill
of Rights.”42

Otis’s arguments before the court in Boston gave early articulation43 to “the right
of the people to be secure in their...houses” recognized in the first clause of the Fourth Amendment;44 the
pamphleteer lawsuits in England similarly contribute to our understanding of
the guarantee in the first clause of “the right of the people to be secure in
their...papers”.45 The second clause of the
Fourth Amendment, which contains what is known as the “particularity requirement”—”no Warrants shall issue, but upon
probable cause, supported by Oath or affirmation, and particularly describing the placeto be searched, and the persons or thingsto be seized”46—can also be traced back to
these early cases. Otis argued that if a house must be searched, as for stolen
goods, only a “special warrant” was lawful: issued “upon oath by the person,
who asks, that he suspects such goods to be concealed in THOSE VERY PLACES HE
DESIRES TO SEARCH.”47 In the Wilkes case, Chief Justice Pratt denied that the defendants had the
right “to break open escrutores, seize their papers,
&c. upon a general warrant, where no inventory is made of the things thus
taken away...and...[and he denied] a
discretionary power given...to search wherever
their suspicions may chance to fall.”48

After Independence, many
revolutionaries raised the concern that a federal government would, like the
vanquished British, abuse the power of the search warrant. At the Virginia ratifying
convention for the proposed Constitution, Patrick Henry declared: “unless the
general government be restrained by a bill of
rights . . . [it may] go into your cellars and rooms and
search, ransack and measure every thing you eat, drink and wear. Everything the
most sacred may be searched and ransacked by the strong hand of power.”49 Ultimately both Virginia and New York conditioned
approval on adoption of a bill of rights that included a search warrant
provision that incorporated key points from the 1761 Otis argument and closely
modeled John Adams’s work on the Massachusetts Constitution.50

This history makes clear that the text
of the Fourth Amendment was addressed to the kinds of search warrants that were
opposed in the writs of assistance and general warrants litigation. In
particular, as we now turn to the DOJ’s use of search warrants for email stored
in a cloud or on cell phones, we should keep in mind the facts of the Wilkes case, described as “the paradigm search and seizure case for
Americans”51 in the eighteenth century, and especially the image
of royal officers breaking open a locked cabinet, gathering all the papers they
can find, and carrying them off for later review.

II. unconstitutional
search warrant practices

The FBI’s efforts to break iPhone encryption are only the latest
chapter in a very troubling story. Instead of recognizing the Fourth
Amendment’s special protections for private papers, the DOJ is re-enacting the
procedures used by Lord Halifax and applying them to seizing and searching
electronically stored information, whether maintained on a conventional
computer, in a cloud, or on a cell phone. The DOJ standard operating procedure
is to obtain warrants that authorize copying the entire database. Although the
DOJ may then choose to use keyword searches and other techniques to look for
items of information for which it actually has probable cause to search, it
writes into the warrant discretion to look at everything if it so chooses.52

In 2009, a new section was added to Federal Rule of Criminal
Procedure 41 (Search and Seizure) on “Warrant[s] Seeking Electronically Stored
Information.” The new provisions codified the already prevailing DOJ practice
of requesting ESI warrants that authorized a “two-step process”: (1) seizing
either an entire computer hard drive or creating a mirror “image” of the drive,
followed by (2) “later review,” typically by an expert in computer forensics,
“to determine what [ESI on the drive] falls within the scope of the warrant.”53 Codification
of the two-step process coincided with the rise of web-based email service, and
the DOJ quickly adapted this procedure, designed for computer hardware, to
obtain mirror images of entire email accounts stored in the cloud. The warrant
quashed by the Second Circuit last July is illustrative. It ordered Microsoft
to turn over “for the period of the inception of the account to the present:
(a) [t]he contents of all emails stored in the account...[and] (b) [a]ll records or other information...including address
books, contact and buddy lists, pictures, and files....”54 The warrant
further stated: “A variety of techniques may be employed to search the seized
emails for evidence of the specified crimes including...email-by-email review.”55

The DOJ has now brought the two-step process to cell phone
searches, the troubling consequences of which are on display in United States v. Ravelo.
In this prosecution for alleged white-collar crime the government downloaded
all “the user-generated content” from the iPhone of a prominent attorney including
“emails, text messages, contact list, and user-generated photographs,”56 totaling
approximately 90,000 separate items.57 The U.S.
Attorney wrote a letter remarkably similar to the letter Lord Halifax sent to
Wilkes centuries ago:

U.S. Attorney Fishman has further taken the position that,
even if the court grants pending motions to suppress all evidence from the
phone and return the phone to Ravelo, thus ruling
that the cell phone was seized and searched in violation of the Fourth
Amendment, “the government w[ill] likely retain copies
of the contents of the Phone” and may still use that digital data against Ravelo in a variety of ways.60

It has not escaped judicial notice
that warrants authorizing the two-step procedure risk becoming general warrants
prohibited by the Fourth Amendment, but to date the DOJ has resisted court
attempts to address the problem.61 The DOJ has defended step one by saying that
effective computer forensics require access to the complete database, and has
refused to limit the second step of review of the database,62 thus enabling the kind of “email by email” review
that is authorized by the Microsoft warrant63 and that the Ravelo prosecutors intend to use.64

The DOJ also enjoys a tremendous
strategic advantage due to the lack of due process in most ESI searches. Search
warrant applications are approved ex parte, based
entirely on the government’s one-sided presentation, with neither notice to the
person affected nor the opportunity to be heard.65 Reliable estimates indicate that thousands of ESI
search warrants are kept secret every year through orders to seal the file from
both the public and the person affected.66The government can appeal the magistrate’s decision
to deny a warrant application, but the person affected has no right to judicial
review before the warrant is executed.67 As argued in the current Microsoft suit challenging
DOJ-requested gag orders,68 the lack of due process is even worse when the
warrant is directed at remotely stored email. The only way Americans affected
by such gag orders will ever learn that the government has been able to read
all of their emails is if the government decides to
prosecute them and attempts to use what it has obtained to secure a conviction.

III. congressional action is needed

The bipartisan congressional initiatives described in the
introduction are encouraging because Congress is the best forum for developing
a comprehensive approach to ESI searches that honors the history and text of
the Fourth Amendment.

In the Revolutionary Era, warrants to search private papers
were consistently compared to extracting confessions by torture.69 We ought to
take seriously the argument that, just as torture is always unlawful (even when
national security may be at stake), Congress should categorically prohibit both
federal and state governments from using warrants to obtain personal correspondence
and other private information protected by user-controlled encryption that is
stored on cell phones or in the cloud.

At a minimum, warrants to seize and search ESI stored on
personal cell phones and computers or in personal cloud accounts should be
issued only for compelling reasons and should be vigilantly regulated to ensure
compliance with the Fourth Amendment’s particularity requirement. Such a
regulation might include the following provisions, the first five of which
track federal law regulating wiretapping and electronic surveillance:

(1)Felony
to obtain, disclose, or use ESI except as authorized by this statute;70

(6)If a warrant authorizes seizure of a device containing ESI or the copying of ESI from
such a device or any other storage media (such as a remote server), the device
or copied ESI shall be held under court supervision until the owner of the ESI
has been provided notice and an opportunity for a hearing to contest the terms
of the warrant and/or the procedures to be used to search the device or copied
ESI for one or more items of information described with particularity in the
warrant.75

The final proposal recognizes that the risk of tampering with
or destroying the potential evidence identified in the warrant is minimized by
seizure of the device or copying of the ESI. The target of the warrant is
therefore entitled to similar rights to notice and a hearing as if his ESI had
been sought by grand jury subpoena.76 The other provisions of the sixth
proposal are inspired by recommendations made by five federal appellate judges
in 201077 and subsequently
incorporated into computer search warrant procedures approved by the Vermont
Supreme Court in 2012.78

There have been warnings from an increasing number of federal
judges about the DOJ’s disregard for the particularity requirement of the
Fourth Amendment in its use of ESI search warrants.79 Scholars, including
two former federal prosecutors with specialized knowledge about ESI search
procedures, have also voiced concerns.80 Over twenty
years ago Akhil Amar claimed that a view of the
Fourth Amendment as just a tool of criminal procedure, primarily protecting
“criminals getting off on...technicalities,” risked
making the Amendment “contemptible in the eyes of judges and citizens.”81 Amar’s call
for a “return to first principles” by reading carefully the words of the Fourth
Amendment and the history that gave rise to those words82 fell largely
on deaf ears. But in the last nine months, two of the three most valuable
companies in America83 have taken the offensive
against the federal government to assert the Fourth Amendment rights of
everyone. This offensive has the potential to reinvigorate the nation’s commitment
to the Fourth Amendment, generating momentum for a much-needed and long-overdue
reassessment of the use of warrants to seize and search electronically stored
information, whether stored in cell phones or conventional computers, or in the
cloud.

Clark
D. Cunningham is the W. Lee Burge Chair in Law & Ethics at Georgia State
University College of Law in Atlanta. Thanks to Ryan Bozarth,
Tosha Dunn, and reference librarians Pamela C.
Brannon, Margaret Elizabeth Butler, and Jonathan Edward Germann
for research assistance. The thinking that underlies this essay owes much to
teaching and guidance received from James Boyd White and the late Joseph Grano. Cited case materials and other information are
available at: http://‌clarkcunningham.org/Apple/
[https://perma.cc/7JPZ-BMXU].

Paul Ohm, who led a task force in the DOJ Computer Crime and Intellectual Property Section, descri…

81

Amar, supra note 24, at 758-59, 799 (1994).

82

Id. at 759.

83

Stephen Gandel, These Are the 10 Most Valuable Companies in the Fortune 500, Fortune (Feb. 4, 2016…

1

Order Compelling Apple, Inc. to Assist Agents in Search, In re Search of an Apple iPhone Seized During the Execution of a Search Warrant on a Black Lexus IS300, No. ED 15-0451M (C.D. Cal. Feb. 16, 2016).

David Goldman & Laurie Segall, Apple’s Lawyer: If We Lose, It Will Lead to a ‘Police State’, CNNMoney (Feb. 26, 2016, 12:56 PM), http://‌money.cnn.com‌/2016‌/02‌/26‌/technology‌/ted‌-olson-apple [http://perma.cc/U3YQ-S6S3].

See, e.g., Hearing Before the H. Comm. on the Judiciary, 114th Cong. (2016) (questions to FBI Director James Comey by Rep. Bob Goodlatte, Chairman, H. Comm. on the Judiciary; Rep. John Conyers, Rep. Jerrold Nadler, Rep. Zoe Lofgren, Rep. Ted Poe & Rep. Hakeem Jeffries, Members, H. Comm. on the Judiciary), 2016 WestLawNewsRoom 6586673; Interview by Scott Simon with Rep. Ted Lieu, After Apple Case, Encryption vs. National Security Dilemma Has Just Begun, Nat’l Pub. Radio (Apr. 2 2016, 8:06 AM), http://‌http://www.npr.org‌/2016/04/02/472784761/after-apple-case-encryption-vs-national-security-dilemma-has-just‌-begun [http://‌perma.cc/ZK57-UWXR] (“[T]here has been not a single case that the FBI or anybody else can come up with that would have showed that had the FBI had a back door to a smartphone that they could have stopped any terrorist attack anywhere. What the FBI really is trying to do is to make some law enforcement investigations easier so they can prosecute criminals. It is not a terrorism issue. It really is a law enforcement investigatory tool issue. And the question is - do you want to make some law enforcement investigations easier, but damage national security in the process?”); Cecilia Kang, Ron Wyden Discusses Encryption, Data Privacy and Security, N.Y. Times (Oct. 9, 2016), http://‌http://www.nytimes.com‌/2016‌/10‌/10‌/technology/ron-wyden-discusses-encryption-data-privacy-and-security.html [http://‌perma.cc‌/NGV6-UM4D].

See, e.g.,‌‌ Press Release, Office of Senator Orin Hatch, Hatch Urges DOJ to Work with Congress on ICPA (Oct. 13, 2016), http://‌‌‌‌‌‌‌www‌‌.hatch‌.senate‌.gov‌/public/index.cfm /2016/10/hatch-urges-doj-to-work-with-congress‌-on-icpa [https://perma.cc/E53Q-X2KE] (urging the Department of Justice to work with Congress on new legislation to respond to the Second Circuit’s decision in Microsoft).

U.S. Const., amend. IV (“The right of the people to be secure in their ...papers ...against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause...and particularly describing the ...things to be seized.”); In the Matter of the Search of Premises Known as: Three Hotmail Email Accounts, No. 16-MJ-8036-DJW, 2016 WL 1239916 (D. Kan. March 28, 2016), at *3-15 (explaining that the purpose of Fourth Amendment’s “particularly describing” requirement is to prevent issuance of general warrants).

26

Adams, later to serve as the second President, seconded the motion for independence passed by the Continental Congress on June 7, 1776, and was appointed to the Committee of Five that drafted the Declaration of Independence. See David McCullough, John Adams 117-36 (2001).

William J. Cuddihy, The Fourth Amendment: Origins and Original Meaning 443 (2009) (“The warrant against The North Briton Forty-Five was among the most potent stimulants to adjudication in British legal history .... [T]he warrant figured directly in at least thirty suits or trials. Derivative trials numbered sixteen or more.”); Robert R. Rea, The General Warrant in the Courts of Law: The Cases Arising from North Briton No. 45, inThe English Press in Politics 1760-1774, at 59-69 (1963).

Entick v. Carrington (1765) 95 Eng. Rep. 807, 812; 2 Wils. K.B. 275, 282. For a larger excerpt of the Entick decision, see 19 T. B. Howell, A Complete Collection of State Trials and Proceedings for High Treason and Other Crimes and Misdemeanors: From the Earliest Period to the Year 1783: 1753-70, at 1030 (1816).

38

See, e.g., Boyd v. United States, 116 U.S. 616, 626-27 (1886). (“As every American statesman, during our revolutionary and formative period as a nation, was undoubtedly familiar with this monument of English freedom [Lord Camden’s opinion in Entick], . . . it may be confidently asserted that its propositions were in the minds of those who framed the fourth amendment to the constitution, and were considered sufficiently explanatory of what was meant by unreasonable searches and seizures.”).

39

Howell, supra note 37, at 1066.

40

Id.

41

Eric Schnapper, Unreasonable Searches and Seizures of Papers, 71 Va. L. Rev. 869, 912-14 (1985) (“One member of the Sons of Liberty...wrote that ‘The fate of Wilkes and America must stand or fall together.’”).

Adams’ Minutes of the Argument at Suffolk Superior Court, Boston, on Feb. 24, 1761, in 2 Legal Papers of John Adams, supra note 27, at 142 (“Now one of the most essential branches of English liberty, is the freedom of one’s house.... This writ, if it should be declared legal, would totally annihilate this privilege.”).

44

U.S. Const.amend. IV (emphasis added).

45

Id. The inclusion of “papers” in the “right to be secure” also expands the potential meaning of “searches.” Clark D. Cunningham, A Linguistic Analysis of the Meanings of “Search” in the Fourth Amendment: A Search for Common Sense, 73 Iowa L. Rev. 541 (1988).

46

U.S. Const., amend IV (emphasis added).

47

Adams’ Minutes of the Argument at Suffolk Superior Court, Boston, on Feb. 24, 1761, in 2 Legal Papers of John Adams, supra note 27, at 125-26, 141 (capitalization in original).

48

Wilkes v. Wood (1763) 98 Eng. Rep. 489, 498 (KB).

49

3 Debates in the Several State Conventions on the Adoption of the Federal Constitution 448-49 (J. Elliot ed., 2d ed. 1881).

Comput. Crime & Intellectual Prop. Section, Computers and Obtaining Electronic Evidence in Criminal Investigations, U.S. Dep’t Just.79-83 (3d ed. 2009), http://‌www‌.justice‌.gov‌/sites/default/files/criminal-ccips/legacy/2015/01/14/ssmanual2009.pdf[http://‌perma.cc‌/NEX5-P75T] (“Do Not Place Limitations on the Forensic Techniques That May Be Used to Search”).

See In the Matter of the Search of Premises Known as: Three Hotmail Email Accounts, No. 16-MJ-8036-DJW, 2016 WL 1239916 (D. Kan. March 28, 2016), at *3-15 (collecting cases and critiquing the two-step process as violating the Fourth Amendment’s particularity requirement).

First Amended Complaint for Declaratory Judgment at para. 37, Microsoft Corp. v. U.S. Dep’t of Justice, No. 2:16-cv-00538-JLR (W.D. Wash. June 17, 2016), 2016 WL 3381727. As to the government’s argument that the Fourth Amendment does not require notice to the target of the search, see Reply Supporting Motion to Dismiss Pursuant to Fed.R.Civ.P.12(B)(1) and 12(B)(6), at 11-13, Microsoft Corp. v. U.S. Dep’t of Justice, No. 2:16-cv-00538JLR (W.D. Wash. Sep. 23, 2016).

Cf. 18 U.S.C. §2511(1), (4) (2012) (stating that, except as otherwise provided in the statute, any person who (a) intentionally intercepts any wire, oral, or electronic communication or (b) intentionally discloses the contents of such interception shall be fined and/or imprisoned not more than five years); id. §2515 (“Whenever any wire or oral communication has been intercepted, no part of the contents of such communication and no evidence derived therefrom may be received in evidence in any trial, hearing, or other proceeding ....”).

71

Cf. id. at §2516(1)(a)-(t) (stating that the Attorney General may authorize an application for judicially-approved interceptions when such interception may provide evidence relating to particular serious offenses enumerated in the statute, such as those punishable by death or imprisonment for more than one year).

72

Cf. id. at §2518(3)(c) (providing that a judge may authorize interception if she determines “on the basis of the facts submitted by the applicant” that “normal investive procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous”).

73

Cf. id. at §2516(1) (listing DOJ officials at or above the level of acting Deputy Assistant Attorney General as having the authority to authorize a wiretap application); id. §2516(2) (explaining that the principal prosecuting attorney of any State or the principal prosecuting attorney of any political subdivision thereof may apply for a wiretap order if authorized by state statute).

74

Cf. id. at §2519 (requiring each judge who issues a wiretap order to file a report with the Administrative Office of United States Courts (AOC), each state prosecutor who applies for a wiretap order to issue a similar report to the AOC, and the AOC itself to submit an annual report to Congress documenting the reports it has received); see, e.g., Wiretap Report 2015, U.S. Cts.(Dec. 31, 2015), http://www.uscourts.gov/statistics-reports/wiretap-report-2015[http://perma.cc/6MB6-MBU2].

75

This notice and hearing requirement could be deferred in exigent circumstances, such as probable cause that a terrorist attack was imminent. Cf. 18 U.S.C. §2702(b)(8) (explaining that a provider of electronic communication service may disclose the contents of communication to a governmental entity without a warrant or court order if “the provider, in good faith, believes that an emergency involving danger of death or serious physical injury to any person requires disclosure without delay of communications relating to the emergency”).

76

See, e.g., United States v. Kitzhaber (In re Grand Jury Subpoena, JK-15-029), 828 F.3d 1083, 1088 n.1 (9th Cir. 2016) (quashing grand jury’s subpoena of defendant’s email as overbroad and in violation of the Fourth Amendment and further describing a subpoena’s recipient’s ability to move to quash a subpoena before any search takes place as sufficiently protective of Fourth Amendment rights (citing City of Los Angeles, Cal v. Patel, 135 S. Ct. 2443, 2453 (2015)). In condemning a Lord Halifax general warrant, Lord Camden said: “It is executed against the party, before he is heard . . . ; . . . [i]t is executed by messengers . . . in the presence or absence of the party, as the messengers shall think fit . . . ..[P]roper checks . . . would require [the messenger] to take an exact inventory, and deliver a copy . . . . [T]he want of [these precautions] is an undeniable argument against the legality of the thing.” Howell, supra note 37, at 1064-65, 1067. Likewise, Otis railed against the writ of assistance because “there’s no return, a man [the executing officer] is accountable to no person for his doings [as would be the case if an inventory was taken and returned with the warrant to the court].Adams, Adams’ Minutes of the Argument at Suffolk Superior Court, Boston, on Feb. 24, 1761, supra note 27, at 142, 143. See also Wilkes v. Wood (1763) 98 Eng. Rep. 489, 498 (KB) (“no inventory is made”).

Paul Ohm, who led a task force in the DOJ Computer Crime and Intellectual Property Section, described ESI search warrants as “the closest things to general warrants we have confronted in the history of the Republic,” saying in almost every computer search there is a “manifest lack of probable cause and particularity.” Massive Hard Drives, General Warrants, and the Power of Magistrate Judges, 97 Va. L. Rev. In Brief1, 4, 11 (2011). Orin Kerr, who wrote the first edition of the DOJ manual on searching computers, Orin S. Kerr, Searches and Seizures in a Digital World, 119 Harvard L. Rev. 531, 574 n.189 (2005), has also concluded that ESI searches conducted by the DOJ seem “perilously like the regime of general warrants that the Fourth Amendment was enacted to stop. Everything can be seized. Everything can be searched.” Orin S. Kerr, Executing Warrants for Digital Evidence: The Case for Use Restrictions on Nonresponsive Data, 48 Tex. Tech L. Rev. 1, 11 (2015).